These terms go into effect December 15th, 2024.
These Novi Connect Services Terms (the “Terms”) are between Novi Connect, Inc., a Delaware corporation (“Novi”) and you (“you” or “User”) and govern your use of the Services (as defined below). You and Novi are collectively referred to as the “Parties” and individually as a “Party.”
Please read these Terms carefully before using the Services. By clicking the “Accept” button, uploading any content or data to the services, or otherwise using the Services, you are consenting to be bound by and are becoming a party to these Terms (together with Novi’s Privacy Policy as may be updated or amended from time to time, which is hereby incorporated by reference, the “Agreement”) to the exclusion of all other terms. If you do not agree to all of this Agreement, do not use, access or upload any content or data to the Services. You represent and warrant that you have full legal authority to enter into this Agreement under all applicable laws and on behalf of User. If the terms of this Agreement are considered an offer, acceptance is expressly limited to such terms. If you have executed a separate written agreement with Novi governing access and use of the Services, these Terms will not apply to you and your use and access to the Services will be subject to such other agreement.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND NOVI WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1.1. Novi Connect Services. Novi offers a product portfolio management software-as-a-service application (collectively, the “Platform”) that enables product developers, brands, manufacturers, retailers, and certifying bodies to meet consumer demand and grow loyalty through sustainability programs, certifications, badges, product data verification, discovery of ingredients and packaging, and other product services (collectively, the “Services”) as further described at https://noviconnect.com. In connection with the Services, you may disclose or otherwise submit or make available to Novi certain data, information, or material, including without limitation, data, information or material related to you and your products (collectively, “User Materials”). In order to provide the Services to you, Novi may share such User Materials with those Novi retailer customers and certifying body partners (collectively, “Certifiers”) to whom you have provided your prior consent (either directly to such Certifier or to Novi), for the purpose of assessing compliance with such Certifiers’ badge, promoted product attributes, or other similar certification programs, as applicable, or other laws, rules or regulations. You are solely responsible for the accuracy, quality, legality, reliability, appropriateness, and integrity of User Materials.
1.2. Establishing Accounts. In order to access the Services, you must create a Novi Connect user account (an “Account”) through the Platform. Access to the Services is limited to your authorized personnel (each, an “Authorized User”). As part of the registration process, you will enable its Authorized Users to create separate Accounts. You are responsible for verifying that the information in each Account is accurate and up-to-date, and are responsible for all activity occurring on Accounts registered to you and for each Authorized User’s compliance with the terms of this Agreement and their use of the Services. Novi may refuse registration of an Account in its sole reasonable discretion.
1.3. Restrictions. ou will not, and will not permit or assist any third parties to: (a) sell or re-sell the Services to a third party; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Services (except to the extent applicable laws specifically prohibit such restriction); (c) modify, translate, or create derivative works based on the Services; (d) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (f) use the Services in any manner that is likely to damage, disable, overburden, or impair the Services; (g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (h) bypass any measures Novi may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); or (i) access or use the Services for the purposes of creating or building a competitive product or service. 1.4. Security. You are responsible for maintaining the security and integrity of: (a) any equipment used to connect to, access, or use, the Services; and (b) Account usernames and passwords. You must immediately notify Novi of any actual or reasonably suspected unauthorized access to, or use of, an Account, or any other security breach with respect to the Services.
1.5. Certifications and Badges; Disclaimers. You acknowledge and agree that Novi is not a certifying body or regulatory tool, and the Services are not intended to convey legal or other professional advice. Novi may create certain assessments, reports, derivatives, and/or analyses of User Materials and other data provided to Novi by its other customers and/or other third parties or data sources (such sources, “Data Sources” and such analyses, “Reports”) and may provide such Reports and User Materials to those Certifiers(s) to whom you have provided your prior consent (either directly to such Certifier or to Novi), as applicable, for such Certifiers to determine compliance with applicable laws, rules and regulations and/or Certifiers’ badge, promoted product attributes, or other similar certification programs, as applicable. Notwithstanding the foregoing, Novi does not guarantee, warrant, or provide any assurance (express or implied) that such compliance with applicable laws, rules, regulations or Certifier badge, promoted product attributes or other similar certification programs will result from Novi’s delivery of the Services to you or delivery of the User Materials (or any Reports therefrom) to any Certifier. A Certifier, and not Novi, will be solely responsible for making the determination whether to provide you with a badge, promoted product attribute or other similar certification. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT REPORTS ARE BASED ON INFORMATION PROVIDED TO NOVI BY YOU, INCLUDING WITHOUT LIMITATION USER MATERIALS, OR OTHER INFORMATION FROM NOVI OR PROVIDED TO NOVI THAT IS EXPRESSLY APPROVED BY YOU (“DATA INPUTS”), AND THEREFORE ANY INACCURACIES, ERRORS AND/OR OMISSIONS IN THE DATA INPUTS (COLLECTIVELY, “DATA FLAWS” MAY BE REFLECTED IN THE REPORTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOVI IS NOT RESPONSIBLE NOR WILL HAVE ANY LIABILITY FOR: (A) ENSURING THAT THERE ARE NO DATA FLAWS OR THAT REPORTS ARE OTHERWISE ACCURATE, COMPLETE, ERROR-FREE OR UP-TO-DATE; OR (B) ENSURING THAT THE REPORTS WILL RESULT IN ACCEPTANCE TO A CERTIFIER’S BADGE OR CERTIFICATION PROGRAMS. NOVI CANNOT CONTROL AND HAS NO DUTY TO TAKE ANY ACTION REGARDING HOW A CERTIFIER MAY INTERPRET, RELY ON OR USE ANY USER MATERIALS OR REPORTS OR WHAT ACTIONS A CERTIFIER MAY TAKE AS A RESULT OF RECEIVING ANY USER MATERIALS OR REPORTS. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, YOU ASSUME ALL RISKS ASSOCIATED WITH PROVIDING ANY USER MATERIALS TO NOVI HEREUNDER, INCLUDING ANY CERTIFIER’S USE OF SUCH USER MATERIALS.
2.1. Novi’s Intellectual Property Rights; License Grant. As between you and Novi, Novi (or its licensors) owns all Intellectual Property Rights and all right, title, and interest in and to the Services, including all inventions, platforms, software, interfaces, tools, techniques, methods, algorithms, know-how, and trade secrets in connection therewith (excluding any User Materials), as well as any and all changes, corrections, bug fixes, enhancements, customizations, updates, derivative works, and other modifications thereto, and all Novi trademarks, names, and logos. Subject to your compliance with this Agreement, Novi grants you a limited, non-exclusive, non-sublicensable, non-transferable, worldwide, revocable license during the term of this Agreement to access and use the Services solely for your internal business purposes. Except for the foregoing license, no licenses or rights are granted to you hereunder and all rights in the Services are expressly reserved by Novi and its licensors. As used in this Agreement, “Intellectual Property Rights” mean all rights to any patents, copyright, trademark, trade secret, database protection, or other intellectual property rights laws.
2.2. User Intellectual Property Rights; License Grant. As between you and Novi, you (or your licensors) own all Intellectual Property Rights and all right, title, and interest in and to the User Materials. You grant Novi a non-exclusive, worldwide, perpetual license to access, use, reproduce, transmit, distribute, store, archive and display User Materials as necessary to provide or facilitate the Services provided to you or to any Certifier to whom Novi has shared your User Materials in accordance with Section 1.1, including after termination of this Agreement. For the avoidance of doubt and notwithstanding anything else to the contrary in this Agreement, the foregoing license grant includes the right to share User Materials with those Certifiers to whom you have provided your prior consent (either directly to such Certifier or to Novi) for the purpose of assessing and determining compliance with such Certifiers’ badge and certification programs or other laws, rules or regulations.
2.3. Aggregate Anonymous Data. Notwithstanding the foregoing, you acknowledge and agree that Novi may use User Materials to generate Aggregated Anonymous Data (as defined below) and may freely use, retain, share and make available such Aggregated Anonymous Data for Novi’s business purposes (including without limitation, for purposes of improving, testing, training, operating, promoting and marketing Novi’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Novi in connection with your use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to you. Furthermore, you agree that Novi is free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services hereunder, including that it could have acquired performing the same or similar services for another customer.
2.4. Usage Statistics. Novi may collect and analyze information relating to the provision, use, and performance of the Services, and may (a) use such information and data for any purpose, including without limitation, to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and (b) disclose such data in connection with its business or as otherwise permitted by this Agreement.
2.5. Feedback. You or your Authorized Users may provide recommendations, suggestions, or other feedback regarding any features, functionality, or performance of the Services (“Feedback”). Novi shall have a perpetual, irrevocable, fully paid up, royalty-free, sublicensable, transferable right and license to use Feedback without any attribution or compensation to you, provided that such use does not contain User Confidential Information nor identify you or any Authorized User.
2.6. Monitoring and Enforcement. Novi reserves the right to monitor your use of the Services and your compliance with this Agreement. Additionally, for the duration of the term of this Agreement, and for a period of three (3) years thereafter, you agree to reasonably cooperate with Novi, at Novi’s request, in Novi’s efforts to ensure your compliance with this Agreement, including without limitation providing documentation, information, and other evidence of your compliance herewith.
3.1. Applicability. The following terms of this Section 3 may be applicable to you to the extent your use of the Services requires you to pay Novi certain fees for such use. Please read this Section 3 carefully to understand which terms may or may not be applicable to you.
3.2. Fees. All such fees shall be communicated to you in advance prior to your use of the applicable portion of the Services, and you shall pay such fees in accordance with the terms herein and any other terms communicated to you by Novi, unless otherwise agreed upon in writing by the Parties. If you do not agree to pay such fees, you will not be permitted to use the applicable portion of the Services for which the fees are applicable. All fees are non-refundable and not subject to set-off.
3.3. Billing. We may use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to use Paid Services, you agree to pay us, through the Payment Processor or otherwise, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor or otherwise, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes (to the extent applicable) even if it has already requested or received payment.
3.4. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
3.5. Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. Such notice will not affect charges submitted before we reasonably could act. To terminate your authorization or change your Payment Method, go to your Account Settings.
3.6. Current Information Required. You must provide current, complete and accurate information for your Billing Account and you must promptly notify us or our Payment Processor if your Payment Method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made in your Account Settings. If you fail to provide any of the foregoing information, you agree that we may continue charging you for any use of Paid Services under your Billing Account unless you have terminated your Paid Services as set forth above.
3.7. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
3.8. Auto-Renewal for Paid Services. You acknowledge and agree that the Paid Services you have signed up for may be subject to auto-renewal and therefore may automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If any such Paid Services are subject to auto-renewal, you may manage your subscription in your Account Settings. If you terminate a Paid Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING BASIS, YOU MUST CANCEL THE APPLICABLE PAID SERVICE THROUGH YOUR ACCOUNT SETTINGS OR TERMINATE YOUR ACCOUNT BEFORE THE END OF THE RECURRING TERM. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NOVI WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
3.9. Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
3.10. Taxes. Except as expressly stated to the contrary, all fees are exclusive of Taxes and you will promptly pay or reimburse Novi for all Taxes arising out of your use of the Services. “Taxes” means any sales, use, and other taxes (other than taxes on Novi income), export and import fees, customs duties and similar charges applicable to the Services that are imposed by any government or other authority. If you are legally entitled to an exemption from the payment of any Taxes, you will promptly provide Novi with legally sufficient tax exemption certificates for each taxing jurisdiction for which you claim exemption.
4.1. Confidential Information. Each Party and its Affiliates (the “Disclosing Party”) may disclose or otherwise make available to the other Party and its Affiliates (the “Receiving Party”) information of the Disclosing Party, including without limitation, business, technical or financial information relating to the Disclosing Party’s business, whether disclosed orally or in writing that is either marked as “confidential” and/or “proprietary” or where given the nature of the information and the circumstances of the disclosure the Receiving Party should reasonably understand the information to be confidential and/or proprietary (collectively, “Confidential Information”). In the case of Novi, Confidential Information includes, without limitation, non-public information regarding features, functionality, performance of, and all information related to, the Services, Reports, recommendations and information related to product ingredients, information related to other Novi users, the terms of this Agreement, and any fees for the Services and payment terms (if applicable). “Affiliate” means a company that controls, is controlled by or is under common control with a Party.
4.2. Restrictions. The Receiving Party will protect the Disclosing Party’s Confidential Information using the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care and, except as expressly set forth herein, will not disclose Confidential Information to any third party (except to its Affiliates), without the Disclosing Party’s prior consent. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to those of its employees and contractors who have a need to know such information for the Receiving Party to perform its obligations under this Agreement and who are bound in writing to confidentiality obligations at least as stringent as those contained herein. The Receiving Party shall remain liable for the acts and omissions of its employees and contractors to whom it discloses Disclosing Party’s Confidential Information. The Receiving Party also agrees not to use the Disclosing Party’s Confidential Information except in its use or provision of the Services or as otherwise permitted by this Agreement.
4.3. Exclusions. The Disclosing Party agrees that the obligations in this Section 4 will not apply with respect to any information that the Receiving Party can demonstrate (a) is or becomes generally available to the public; (b) was rightfully in its possession or rightfully known by the Receiving Party without restriction prior to receipt from the Disclosing Party; (c) was rightfully disclosed to the Receiving Party without restriction by a third party; or (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. In the event the Disclosing Party’s Confidential Information is required to be disclosed by law, a regulator or court order, the Receiving Party shall notify the Disclosing Party of the legal requirement (unless such notice is prohibited at law) and reasonably cooperate with the Disclosing Party, at the Disclosing Party’s request, in contesting the legal disclosure. In any event, the Receiving Party shall only disclose the minimum amount of Confidential Information necessary to comply with the legal order.
5.1. Termination. You may terminate this Agreement and your use of the Services at any time by contacting Novi at support@noviconnect.com. Novi may terminate this Agreement and your Account at any time upon thirty (30) days’ prior notice to you, unless you have breached this Agreement, in which case, Novi may suspend or terminate your Account immediately without notice.
5.2. Effect of Termination. Upon termination of this Agreement: (a) you will immediately cease to access and use the Services and all licenses granted to you herein will immediately be revoked; (b) if applicable, you will promptly pay all fees due through the termination date; and (c) each Party will promptly return or destroy all Confidential Information of the other Party then in its possession; provided that, notwithstanding the foregoing, Novi shall have no obligation to return or destroy any Reports or User Materials that have been provided to any Certifier, and you acknowledge and agree that Novi and any such Certifier, as applicable, may continue to use the Reports and User Materials contemplated by this Agreement.
5.3. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment and Sections 1.5 and 2 through 9 (inclusive).
6.1. User. User represents and warrants to Novi that: (a) it is duly organized, validly existing, and in good standing under the laws of the state of its organization, and has the right, power and ability to enter into and perform its obligations under this Agreement; (b) it will comply with all applicable laws, rules, and regulations in its performance hereunder; (c) when executed and delivered by User, this Agreement will constitute the legal, valid, and binding obligation of User, enforceable against User in accordance with its terms; (d) it is not a party to any other agreements that conflict with, or would prohibit it from entering into, this Agreement; (e) all User Materials are accurate and complete; (f) it has obtained all necessary rights, licenses, permissions, and consents to provide the User Materials to Novi for Novi’s use of the User Materials as contemplated by this Agreement; and (g) the User Materials will not infringe or misappropriate any third-party rights, including any third-party Intellectual Property Rights.
6.2. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, THE PLATFORM, REPORTS AND ALL RELATED INFORMATION AND TECHNOLOGY PROVIDED BY OR ON BEHALF OF NOVI ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND NOVI DISCLAIMS ALL WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, AND/OR NON-INFRINGEMENT. IN ADDITION, NOVI DOES NOT WARRANT THAT THE SERVICES, THE PLATFORM, OR REPORTS WILL BE TIMELY, UNINTERRUPTED, OR ERROR FREE, THAT THE SERVICES, THE PLATFORM OR REPORTS WILL MEET USER’S NEEDS OR EXPECTATIONS, THAT DATA WILL NOT BE LOST, OR THAT THE NOVI PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
7.1. You will indemnify, defend, and hold harmless Novi, its Affiliates, and its and their respective directors, officers, employees, contractors, and representatives, from and against any damages, liabilities, losses, settlements, fines, penalties, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) in connection with any claim, suit, demand, cause of action, or proceeding brought by a third party (each, a “Claim”) arising out of: (a) your gross negligence, willful misconduct or fraud; (b) your breach of the Agreement, including without limitation, your representations and warranties thereunder, (c) User Materials, including any Claim that you or the User Materials have infringed or misappropriated any third-party Intellectual Property Rights or any claim that the User Materials are inaccurate, false or incomplete; or (d) User’s use or misuse of the Services or the Platform.
8.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NOVI OR ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, OR EMPLOYEES BE LIABLE TO USER OR ANY THIRD PARTIES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR: (A) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CUMULATIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION THOSE FOR LOSS OF DATA, REVENUE, OR PROFITS, OR THE COST OF PROCURING SUBSTITUTE GOODS, EVEN WHERE SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY DIRECT DAMAGES EXCEEDING THE GREATER OF (I) ONE HUNDRED DOLLARS ($100) AND (II) THE TOTAL FEES PAID OR PAYABLE BY USER TO NOVI DURING THE THREE (3) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
9.1. No Export. User may not remove or export from the United States or allow the export or re-export of the Services in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in Federal Acquisition Regulation (FAR) section 2.101, the Services and documentation are “commercial items” and according to Defense Federal Acquisition Regulation Supplement (DFARS) section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
9.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of California without regard to the conflicts of laws provisions thereof.
9.3. Dispute Resolution. Unless prohibited by applicable law, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration (to be held in English) in Marin County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures then in effect by a single JAMS arbitrator with substantial experience in resolving complex commercial contract disputes under California law, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each Party will have a right to seek injunctive or other equitable relief in a court of law from any court of competent jurisdiction. The prevailing Party will be entitled to receive from the non-prevailing Party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing Party will be that Party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. The Parties expressly agree that the United Nations Convention for the International Sale of Goods will not apply to this Agreement.
9.4. Independent Contractors. Novi and User are independent contractors of each other and this Agreement will not be interpreted or construed to create an association, employer-employee relationship, joint venture, partnership, or franchise between Novi and User, or to impose any partnership obligation or similar liability upon either Novi or User. Neither Party has the authority to bind the other Party to any agreements.
9.5. No Exclusivity. This Agreement is non-exclusive between the Parties. Subject to each Party’s confidentiality obligations hereunder, nothing limits either Party from entering into any similar agreement with a third party.
9.6. Publicity. You grant Novi permission to use your name and/or logo to identify you as a Novi customer on Novi’s website and in Novi’s marketing materials.
9.7. Assignment. You may not assign, transfer or sublicense your obligations under this Agreement without Novi’s prior written consent. Novi may assign, transfer or sublicense any of its rights and obligations under this Agreement without your consent. Any attempted assignment in violation of this section will be null and void. This Agreement shall inure to the benefit of each Party and their respective heirs, permitted assigns, and successors.
9.8. Severability; No Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the extent necessary so that this Agreement otherwise remains in full force and effect. The failure of either Party to enforce any provision of this Agreement will not constitute a waiver of such provision unless agreed to by the Parties in writing.
9.9. Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, epidemics or pandemics, internet service provider failures or delays, denial of service attacks, or other similar causes (each, a “Force Majeure Event”), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of the Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of the Force Majeure Event.
9.10. Notices. All notices from User to Novi shall be sent via email to support@noviconnect.com. All notices from Novi to User may be made via email to the email address specified in User’s Account. Notices shall be deemed sent five (5) minutes after the sending the email, unless the sender receives a bounce-back or other ‘undeliverable’ response during such time.
9.11. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the mutual understanding of the Parties and supersede all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
9.12. Modifications. Novi reserves the right in its sole discretion to modify or discontinue, temporarily or permanently, the Platform or Services at any time, and to modify this Agreement at any time without prior notice.
9.13. Support. You may initiate a support ticket by emailing support@noviconnect.com.
